Citation Nr: 1703355 Decision Date: 02/06/17 Archive Date: 02/15/17 DOCKET NO. 12-32 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II to include as due to exposure to herbicides. 2. Entitlement to service connection for coronary heart disease to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Shea A. Fugate, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. A hearing was held on May 2016, in St. Petersburg, Florida, before Kathleen K. Gallagher, a Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran was exposed to herbicide agents (Agent Orange) during his active service. 2. Diabetes mellitus type II did not have its clinical onset in service, was not exhibited within the first post service year, and is not otherwise related to active duty. 3. Coronary heart disease did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSIONS OF LAW 1. Diabetes mellitus type II was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. Coronary heart disease was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Here, VCAA notice was provided by correspondence in May 2009 and September 2009. The claims were last adjudicated in September 2012. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, and post-service treatment records. Attempts have been made to verify the Veteran's alleged exposure to Agent Orange during active duty. The Veteran's file includes a November 2009 memorandum of which the RO issued a formal finding on a lack of information required to verify Agent Orange exposure in Vietnam or Thailand. It cited to the steps undertaken to verify whether the Veteran was likely exposed to herbicide in service. The conclusion was that they were unable to verify that the Veteran was exposed to Agent Orange while in Thailand. No additional information has been received which leads the Board to believe that additional attempts to verify this service would be fruitful. Although the Veteran was not afforded a VA examination and VA has not otherwise obtained a medical opinion in connection with the claims, the Veteran does not contend that his diabetes mellitus and heart disease are related to service for reasons other than alleged herbicide exposure, and there is no medical evidence suggesting his disabilities are related to service. Additionally, as set out below, there is no probative and credible evidence of the Veteran's being exposed to Agent Orange during his active duty nor is there any credible probative evidence that the Veteran had diabetes mellitus or ischemic heart disease during active duty or within one year of discharge to a compensable degree. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Based on these facts, no examination or medical opinion is required. 38 U.S.C.A. § 5103 (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board will proceed to review the merits of the issues on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic disorder manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2016). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus or cardiovascular disease becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he is entitled to service connection for diabetes mellitus type II and coronary heart disease as a result of Agent Orange exposure during service. The Veteran testified at a Board hearing in May 2016 that he served with a Marine Air Squadron, Marine Air Support Group 17, and was stationed in Nam Phong, Thailand, where he believes he was exposed to Agent Orange during the performance of his duties as an equipment engineer. Reportedly, he serviced amphibious vessels and military vehicles that had returned from Vietnam. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). A veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases, including type 2 diabetes mellitus and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery, if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). Additionally, service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. 38 C.F.R. § 3.307(a)(6)(iv). If a veteran served in the U.S. Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs), to include bases at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, anytime between February 28, 1961 and May 7, 1975, as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed him near the air base perimeter as shown by the evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure may be conceded. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q). As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran has diabetes mellitus type II and coronary artery disease. VA progress notes and problem lists after 2008 reflect diagnoses of diabetes mellitus type II and coronary artery disease. With current disabilities conceded, the issue before the Board becomes whether the Veteran's diabetes mellitus type II and coronary artery disease are a result of his military service, to include his alleged exposure to herbicides. Upon consideration of the record, the Board finds that the preponderance of the competent and probative evidence is against a finding that the Veteran was exposed to Agent Orange during his military service. The Veteran's service personnel records do not show that he served in Vietnam or near the demilitarized zone in Korea. The Veteran does not argue the contrary. Instead, he has alleged exposure during service in Thailand during the Vietnam War through his contact with amphibious vessels and military vehicles that had been in Vietnam. Accordingly, he may not be presumed to have been exposed to Agent Orange pursuant to 38 C.F.R. § 3.307(a)(6). Thus, the Veteran must show actual exposure. Regarding the Veteran's contentions that he was exposed to Agent Orange while serving in Thailand, the Board finds that the most probative evidence is against the claim. Information from the Department of Defense (DoD) indicates that only limited testing of tactical herbicides was conducted in Thailand from April to September 1964. The location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. This location was not near any U.S. military installation or Royal Thai Air Force Base. Tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. The Department of the Air Force indicated that other than the 1964 tests on the Pranburi Military Reservation, there are no records of tactical herbicide storage or use in Thailand. There are no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from 30 August through 16 September 1963 and from 14 -17 October 1966. The 1966 missions involved the spraying of malathion insecticide for the "control of malaria carrying mosquitoes." It was also noted that the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, but does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. There are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer. In Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCH HAND or by helicopters under the control of the U.S. Army Chemical Corps. Base Civil Engineers were not permitted to purchase or apply tactical herbicides. According to his DD Form 214 and personnel file, the Veteran's military occupational specialty was that of engineer equipment mechanic. The Board notes the Veteran testified that he served in Thailand, however, the Veteran's service personnel and service treatment records do not document service in Thailand. As such, the Veteran's assertions are not supported by the information in his service personnel records and his account is uncorroborated. Thus assuming without conceding that the Veteran's May 2016 testimony is credible, the evidence nonetheless does not support a finding, nor does the Veteran claim, that he worked on the perimeter of a RTAFB and there is no evidence he was a security policeman, security patrol dog handler, member of the security police squadron, or was assigned duties at the base perimeter. His duties would have involved working on vehicles or amphibious vessels, not patrolling the perimeter. While the Veteran contends that he was exposed to Agent Orange during service in Thailand, the record does not reflect that the Veteran has any specialized knowledge in identifying chemical compounds or determining whether commercial sprays used were, in fact, herbicides as defined in 38 C.F.R. § 3.307(a)(6). Moreover, the DoD has indicated that no tactical herbicides were used in Thailand after 1964. The Veteran did not serve on active duty until September 1972. Thus, even accepting the Veteran's testimony as competent and credible, exposure to herbicides is not conceded for work as an engineer equipment mechanic would not have placed him in regular contact with a base perimeter, unlike the specialties of security policeman and security patrol dog handler, as set forth in M21-1, Part IV, Subpart ii, Chapter 1. Thus, the presumptions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2016) are inapplicable. Notwithstanding the above, when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, however, the evidence does not reflect, and the Veteran does not contend, that his diabetes mellitus or coronary artery disease arose during service or within one year following discharge from service. With respect to post service medical records, VA treatment records first document a diagnosis of diabetes mellitus and coronary artery disease after 2008. Accordingly, the evidence of record does not support a finding of presumptive service connection under 38 C.F.R. § 3.309(a). There is no competent evidence suggesting that diabetes or coronary artery disease are related to service nor does the Veteran contend such for reasons other than the alleged herbicide exposure. For all the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claims for service for diabetes mellitus type II and coronary artery disease. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal and the claims are denied. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for diabetes mellitus type II to include as due to exposure to herbicides is denied. Service connection for coronary heart disease to include as due to exposure to herbicides is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs